A judge evaluating state fines against tomato grower Ag-Mart has issued a strong recommendation that Florida agriculture officials upgrade record-keeping requirements to more accurately determine if growers are protecting their workers from dangerous pesticides.
Apart from taking the state to task, the recommendation from Administrative Law Judge Lawrence Stevenson contained good news and bad for the company.
Stevenson prescribed that the Department of Agriculture and Consumer Services dismiss some 85 percent of the state complaints brought against Ag-Mart but upheld a dozen violations and recommended a fine of $11,400 instead of the original fine of $111,200.
"That is still one of the largest fines ever levied in a pesticide case in Florida," said Terry McElroy, spokesman for the agriculture department.
But Stevenson's recommendation made it clear that the state's lack of adequate records requirements made it impossible to determine the facts on many counts.
Although records are kept on pesticide applications in Florida farm fields, no detailed data is gathered about where farm laborers work and whether they might come in contact with freshly sprayed fields, the judge said.
"These cases demonstrate a gap in the enforcement mechanism of the Florida Pesticide Law," Stevenson wrote. "It does no good to know when pesticides were applied to a field if there is no way of knowing when workers first entered the field or harvested tomatoes after spraying."
Birth defects spur probe
The original 2005 state investigation was sparked by articles in The Palm Beach Post about three children born within six weeks, all of whom had serious birth defects. All of their parents had worked in fields run by Ag-Mart, which harvests tomatoes in Immokalee, the north Florida town of Jennings and in North Carolina.
Stevenson's recommendation could affect the multimillion dollar civil suit the families brought against Ag-Mart. Stevenson said that, according to records presented to him, at least one of the mothers, Maria Mesa, was in a field where violations occurred. Her daughter, Violeta, died when she was 3 days old because of massive birth defects.
"Mrs. Mesa was in fact exposed to those dangerous pesticides," said her attorney, Andrew Yaffa, after studying Stevenson's words. "I don't see the judge's recommendation as a vindication. In fact, it proves the point."
Leo Bottary, spokesman for Ag-Mart, denied that Mesa was exposed to pesticides in an Ag-Mart field and that the information the judge refers to is the result of record-keeping mistakes, not misuse of chemicals.
Ag-Mart originally was charged with 88 violations and fined $111,200. The charges included violations of "pre-harvest intervals," which means tomatoes allegedly were harvested too soon after they were sprayed with certain pesticides, presenting a potential health hazard to consumers.
The firm also was charged with violation of "reentry intervals," which indicates farm workers may have worked in fields that were even more freshly sprayed, presenting health hazards for the laborers.
Stevenson said "failure to complete the record keeping circle makes it extremely difficult for the Department to prove by clear and convincing evidence that a violation has taken place."
Stevenson accused state investigators of taking the only company records they had and drawing conclusions that lacked common sense.
An administrative law judge's recommendation is not binding, but such findings often are followed.
Stevenson suggested that the state increase its requirements and encouraged Ag-Mart to change its procedures voluntarily.
"Ag-Mart credibly demonstrated that its general practices are designed to minimize worker exposure and guarantee safe harvest," Stevenson wrote, "but the company keeps no records to demonstrate to its customers that it observes these practices in particular instances and is under no legal obligation to keep such records.
"This state of regulatory affairs should be as disturbing to Ag-Mart as to the Department, because purchasers of tomatoes in Florida grocery stores do not require clear and convincing evidence in order to switch brands."
Ag-Mart alters procedures
The initial complaints and fines caused Publix, WalMart and Costco to stop selling Ag-Mart tomatoes temporarily.
Bottary, spokesman for Ag-Mart, said the firm was way ahead of the judge.
"The company has already started doing that quite some time ago," Bottary said, referring to more detailed records of where individual laborers are working in Ag-Mart fields.
He also insisted that firm had followed the regulations earlier but that its record-keeping failures had made it impossible to prove that it was in compliance.
In December, an administrative law judge in North Carolina recommended the dismissal of most of the 369 pesticide violations and most of the $184,500 in fines assessed against Ag-Mart there. The North Carolina investigation was an outgrowth of the Florida case.
Ag-Mart President Don Long said the judges' recommendations showed that agriculture officials in both states had been too quick to condemn the firm.
"As we have stated from the outset, agriculture officials from North Carolina and Florida misunderstood information supplied by Ag-Mart to reach erroneous and misleading conclusions," Long said.
McElroy said the agriculture department and Ag-Mart have 15 days to challenge Stevenson's recommendation.
Eventually, the judge's prescription will go to Agricultural Commissioner Charles Bronson, who can accept or reject it.
He said the department is inclined to follow Stevenson's recommendation and demand more complete record-keeping from growers.
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